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Court Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel Production – eDiscovery Case Law
 

In NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

In this trademark infringement case under the Lanham Act, the defendant moved to compel the plaintiff and its principal to produce “‘passwords and user names to all online websites related to the issues in this litigation, including social media, weblogs, financial information and records,’” and to “submit their computers to an exhaustive forensic examination . . . with ‘access to full electronic content [including] online pages and bank accounts, including without limitation, online postings, weblogs, and financial accounts, for a time period from October 13, 2009 to the present, including deleted and archived content.”  

The plaintiff and its principal refused to disclose passwords and user names based on “privacy and confidentiality objections.”  While acknowledging that the defendant is correct in stating that “there is no protectable privacy or confidentiality interest in material posted or published on social media”, Judge Wilkinson noted that the defendant’s citation and arguments “miss the point”.  Judge Wilkinson stated that “ultra-broad request for computer passwords and user names poses privacy and confidentiality concerns that go far beyond published social media matters and would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to” the plaintiff and its principal.

With regard to the request for forensic examination of the computers of the plaintiff and its principal, Judge Wilkinson acknowledged that such an examination is “within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A).”  However, “such requests are also subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative or duplicative or that could be obtained from some more convenient, less burdensome or less expensive source, or the benefit of which is outweighed by its burden or expense, when considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake and the importance of the proposed discovery to those issues.”  {emphasis added}

While “restrained and orderly computer forensic examinations” have been permitted when it’s been demonstrated that the producing party “has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means”, a party’s “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures”, added Judge Wilkinson.

As a result, Judge Wilkinson ruled that “this overly broad request seeking electronically stored information (ESI), which far exceeds the proportionality limits imposed by Fed. R. Civ. P. 26(b)(2)(C) – expressly made applicable to ESI by Rule 26(b)(2)(B) – is denied.” {emphasis added}

So, what do you think?  Did the defendant’s request exceed proportionality limits?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Can You Figure Out How I Wrote this Blog Post? – eDiscovery Trends

I have to be honest, this blog post contains quite a bit of content from one of the early posts from this blog.  However, there is something different about this version of the content – it looks a bit unusual.  Can you figure out how I wrote it?  See if you can figure it out before you get to the bottom.  I promise I haven’t lost my mind.

Types of exceptions file

It’s important to note that efforts to quote fix quote these files will often change the files parentheses and the meta data associated with them parentheses, so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

  • Corrupted files colon files can become corrupted 4 a variety of reasons, from application failures 2 system crashes to computer viruses. I recently had a case where 40 percent of the collection what’s contained in to corrupt Outlook PST file dash fortunately, we were able to repair those files and recover the messages. If you have read Lee accessible backups of the files, try to restore them from backup. If not, you will need to try using a repair utility. Outlook comes with a utility called scan PST. Exe that scans and repairs PST and OST file, and there are utilities parenthesis including freeware utilities parenthesis available via the web foremost file types. If all else fails, you can hire a-data recovery expert, but that can get very expensive.
  • Password protected files colon most collections usually contain at least some password protected files. Files can require a password to enable them to be edited, or even just to view them. As the most popular publication format, PDF files are often password protected from editing, but they can still be feud 2 support review parenthesis though some search engines May fail to index them parenthesis. If a file is password protected, you can try to obtain the password from the custodian providing the file dash if the custodian is unavailable or unable to remember the password, you can try a password cracking application, which will run through a series of character combinations to attempt to find the password. Be patient, it takes time, and doesn’t always succeed.
  • Unsupported file types corn in most collections, there are some unusual file types that art supported by the review application, such as file for legacy or specialized applications parenthesis E. G. AutoCAD for engineering drawing parenthesis. You may not even initially no what type of files they are semi colon if not, you can find out based on file extension by looking the file extension up in file ext. If your review application can’t read the file, it also can’t index the files for searching or display them 4 review. If those file maybe responses 2 discovery requests, review them with the natives application to determine they’re relevancy.
  • No dash text file colon files with no searchable text aren’t really exceptions dash they have to be accounted for, but they won’t be retrieved in searches, so it’s important to make sure they don’t quote slip through the cracks unquote. It’s common to perform optical character recognition parenthesis Boosie are parenthesis on Tiff files and image only PDF files, because they are common document 4 minutes. Other types of no text files, such as pictures in JTAG or PNG format, are usually not oser, unless there is an expectation that they will have significant text.

Did you figure it out?  I “dictated” the above content using speech-to-text on my phone, a Samsung Galaxy 3.  I duplicated the formatting from the earlier post, but left the text the way that the phone “heard” it.  Some of the choices it made were interesting: it understands “period” and “comma” as punctuation, but not “colon”, “quote” or “parenthesis”.  Words like “viewed” became “feud”, “readily” became “read Lee” and “OCR” became “Boosie are”.  It also often either dropped or added an “s” to words that I spoke.

These days, more ESI is discoverable from sources that are non-formalized, including texts and “tweets”.  Acronyms and abbreviations (and frequent misspelling of words) is common in these data sources (whether typed or through bad dictation), which makes searching them for responsive information very challenging.  You need to get creative when searching these sources and use mechanisms such as conceptual clustering to group similar documents together, as well as stemming and fuzzy searching to find variations and misspellings of words.

Want to see the original version of the post?  Here it is.

So, what do you think?  How do you handle informal communications, like texts and “tweets”, in your searching of ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info – eDiscovery Case Law

We’ve seen several cases where social media or personal data was requested – with some requests granted (including this one, this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is another recent case where the request was denied.

In Salvato v. Miley, No. 5:12-CV-635-Oc-10PRL (M.D. Fla. June 11, 2013), a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

In this case, the plaintiff sued two police officers for causing their son’s death by using excessive force and failing to provide medical treatment. During discovery, the plaintiff filed a motion to compel one officer’s responses to the discovery requests. The interrogatories in question sought information about the defendant’s cell phone numbers, e-mail addresses, social media accounts, and list-serve or message board membership. The contested requests for production sought cell phone records, including all text messages; e-mails; social media messages and other communications; and comments made on websites or message boards that related to the allegations in the plaintiff’s complaint. The defendant objected, arguing that the requests sought confidential information and invaded his privacy, sought irrelevant information and amounted to a fishing expedition, and were intended to annoy, embarrass, and oppress him.

Judge Lammens found the plaintiff “failed to make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” The plaintiff’s argument in support of the relevancy of the requests was that they seek “‘information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.’” Judge Lammens ruled that the “mere hope” that the texts, e-mails, and other communications might contain an admission is not enough to allow the plaintiff “open access to [the defendant’s] private communications with third parties.” Accordingly, the judge rejected the plaintiff’s attempt “to conduct ‘a fishing expedition’” because he did “‘not have a generalized right to rummage at will through information that Plaintiff has limited from public view.’”

So, what do you think?  Should the motion to compel have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

In Moore v. Miller, No.: 10-cv-651-JLK, 2013 (D. Colo. June 6, 2013), Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

In this case, the defendants filed a motion to enforce the court’s order to compel the plaintiff’s production of “writings related to his arrest, his tax records, and his employment records.” As part of those writings, the defendants asked for his Facebook records and activity log and documents he posted on his websites. The defendants claimed that the plaintiff did not comply because he only partially produced writings, including “‘an incomplete and highly-redacted printout of Plaintiff’s Facebook wall posts’” and he did not produce an activity log.

The plaintiff relied on his interpretation of “about his arrest” to narrow the scope of the order compelling production. The court remarked that narrowing the scope to this extent would “exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and his alleged physical and mental injuries.” Moreover, the court noted that the defendants’ request for Facebook information extended to “all of his missing Facebook posts” and the activity log.

The plaintiff argued that this expanded scope sought irrelevant evidence and would invade his privacy. But the court found the plaintiff’s allegations of physical injury and emotional distress warranted a more in-depth review of his social media account. His “Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).” Moreover, the plaintiff “reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.” {emphasis added}

Although the plaintiff requested that the data be reviewed in camera, the court found its protective order would protect the plaintiff’s privacy.

The court also granted the defendants’ motion for attorneys’ fees related to the motion, noting “how unfortunate it is that the parties’ differing interpretations about the scope of ordered discovery spawned a chain of hostile emails and ultimately the instant motion. Where the nature or scope of an Order is contested, the best course of action is for the disputing parties jointly to file a motion for clarification.” In addition, the motion sought the defendant’s current address, tax returns, and employment history: “No party should have to resort to motion practice to obtain information as elemental as a party opponent’s address.”

So, what do you think?  Was the judge right to allow discovery of the plaintiff’s Facebook information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Appellate Court Denies Sanctions for Routine Deletion of Text Messages – eDiscovery Case Law

In PTSI, Inc. v. Haley, No. 684 WDA 2012, 2013 Pa. Super. (Pa. Super. Ct. May 24, 2013), the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

Here, the plaintiff filed claims of conversion, breach of the duty of loyalty, and breach of fiduciary duty against its former at-will employees and their new competing business. The trial court dismissed all claims at summary judgment. It also denied PTSI’s motion seeking sanctions for spoliation, because the deletion of electronically stored information, including text messages, was not relevant to the summary judgment decision.

During discovery, PTSI filed a motion seeking sanctions based on its two former employees’ deletion of electronic records from their computers and phones, including text messages. The company claimed the information was “vital to the prosecution of this case” and could not be “feasibly reconstructed or retrieved without enormous time and expense to PTSI, if at all.”

Under Pennsylvania law, the court had to evaluate three factors to determine the appropriate sanction: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”

To determine the level of fault, the court considered the extent of the duty to preserve the evidence, based on whether litigation is foreseeable and whether the evidence might be prejudicial to the opposing party, and whether the evidence was destroyed in bad faith. The court also considered proportionality in making decisions, including five factors spelled out in the comments to the Pennsylvania Rules of Civil Procedure:

  • the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;
  • the relevance of electronically stored information and its importance to the court’s adjudication in the given case;
  • the cost, burden and delay that may be imposed on the parties to deal with electronically stored information;
  • the ease of producing electronically stored information and whether substantially similar information is available with less burden; and
  • any other factors relevant under the circumstances.

Here, the amount in controversy and the importance of the issues involving the data did not support awarding a discovery sanction. Moreover, PTSI could not show that its former employees’ “innocent clean up of personal electronic devices to allow them to function was unusual, unreasonable or improper under the circumstances.” Because the defendants “routinely deleted text messages, often on a daily basis, so as not to unduly encumber their iPhones” and because of “the volume of text messages that are frequently exchanged by cell phone users and the limited amount of storage on cell phones, it would be very difficult, if not impossible, to save all text messages and to continue to use the phone for messaging.” Furthermore, the order of preservation was entered well after any relevant data would have already been created and deleted. In addition, similar information was available from other sources and custodians; the forensic examiner in the case unearthed more than 1,000 e-mails from the employees’ computers. Finally, any spoliation inference could not defeat the summary judgment motion.

The appellate court agreed with the trial court’s reasoning and found no abuse of discretion.

So, what do you think?  Should the sanctions have been granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Just a Reminder to Think Before You Hit Send – eDiscovery Best Practices

With Anthony Weiner’s announcement that he is attempting a political comeback by running for mayor on New York City, it’s worth remembering the “Twittergate” story that ultimately cost his congressional seat in the first place – not to bash him, but to remind all of us how important it is to think before you hit send (even if he did start his campaign by using a picture of Pittsburgh’s skyline instead of NYC’s — oops!).  Here is another reminder of that fact.

Chili’s Waitress Fired Over Facebook Post Insulting ‘Stupid Cops’

As noted on jobs.aol.com, a waitress at an Oklahoma City Chili’s posted a photo of three Oklahoma County Sheriff’s deputies on her Facebook page along with the comment: “Stupid Cops better hope I’m not their server FDP.” (A handy abbreviation for F*** Da Police.)

The woman, Ashley Warden, might have had reason to hold a grudge against her local police force. Last year she made national news when her potty-training toddler pulled down his pants in his grandmother’s front yard, and a passing officer handed Warden a public urination ticket for $2,500. (The police chief later apologized and dropped the charges, while the ticketing officer was fired.)

Nonetheless, Warden’s Facebook post quickly went viral on law enforcement sites and Chili’s was barraged with calls demanding that she be fired. Chili’s agreed. “With the changing world of digital and social media, Chili’s has Social Media Guidelines in place, asking our team members to always be respectful of our guests and to use proper judgement when discussing actions in the work place …,” the restaurant chain said in a statement. “After looking into the matter, we have taken action to prevent this from happening again.”

Best Practices and Social Media Guidelines

Another post on jobs.aol.com discusses some additional examples of people losing their jobs for Facebook posts, along with six tips for making posts that should keep you from getting fired, by making sure the posts would be protected by the National Labor Relations Board (NLRB), which is the federal agency tasked with protecting employees’ rights to association and union representation.

Perhaps so, though, as the article notes, the NLRB “has struggled to define how these rights apply to the virtual realm”.  It’s worth noting that, in their statement, Chili’s referred to violation of their social media guidelines as a reason for the termination.  As we discussed on this blog some time ago, having a social governance policy in place is a good idea to govern use of outside email, chat and social media that covers what employees should and should not do (and the post identified several factors that such a policy should address).

Thinking before you hit send in these days of pervasive social media means, among other things, being familiar with your organization’s social media policies and ensuring compliance with those policies.  If you’re going to post anything related to your job, that’s important to keep in mind.  To think before you hit send also involves educating yourself as to what you should and should not do when posting to social media sites.

Of course it’s also important to remember that social media factors into discovery more than ever these days, as these four cases (just from the first few months of this year) illustrate.

So, what do you think?  Does your organization have social media guidelines?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will return after the Memorial Day Holiday.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile – eDiscovery Case Law

Unlike last week’s case law summary about a case where a request for social media data was denied, this week’s case law summary relates to sanctions for deleting a social media data profile.

In Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, (D.N.J. Mar. 25, 2013), New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright.  Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

Case Background

In this personal injury action, a ground operations supervisor alleged injuries after vehicles operated by the defendants did “crash into him”.  The defendants served a production request to the plaintiff in July 2011 which included a request for documents and information related to social media accounts maintained by the plaintiff.  In November 2011, the plaintiff provided the defendants with signed authorizations for the release of information from sites such as eBay and PayPal, but did not include an authorization for the release of records from Facebook.  In a settlement conference in December 2011, the judge ordered the plaintiff to execute an authorization for the release of documents and information from Facebook and the plaintiff agreed to change his password and provide it to the defendants.

However, the parties disputed whether it was agreed that defense counsel would directly access the plaintiff’s Facebook account.  The defendants subsequently accessed the account and the plaintiff received an alert from Facebook that his account was logged onto from an unfamiliar IP address.  After, in January 2012, the plaintiff’s counsel agreed to download the Facebook account information and provide a copy to the parties, it was determined that the plaintiff’s Facebook account had been deactivated back on December 16, 2011 (after he received the alert from Facebook), and that all of the plaintiff’s account data was lost.  As a result, the defendants requested the adverse inference instruction and monetary sanctions.

Judge’s Evaluation and Ruling

Judge Mannion noted four factors in considering an adverse inference instruction sanction:

  1. the evidence was within the party’s control;
  2. there was an actual suppression or withholding of evidence;
  3. the evidence was destroyed or withheld was relevant to the claims or defenses; and
  4. it was reasonably foreseeable that the evidence would be discoverable.

Judge Mannion stated, “Here, the deletion of Plaintiff’s Facebook account clearly satisfies the first, third, and fourth of the aforementioned factors.  Plaintiff’s Facebook account was clearly within his control, as Plaintiff had authority to add, delete, or modify his account’s content…It is also clear that Plaintiff’s Facebook account was relevant to the litigation.”  With regard to the second factor and the plaintiff’s claim that the deletion was unintentional, Judge Mannion ruled that “Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account. In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted.”  Finding all four factors satisfied, Judge Mannion granted the adverse inference instruction sanction.  With regard to the request for fees and costs, Judge Mannion ruled that “such a decision is left to the discretion of the court” and denied the request.

So, what do you think?  Was the sanction appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Yet Another Request for Facebook Data Denied – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is a recent case where the request was denied.

In Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, (D. MD Tenn. Mar. 20, 2013), Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

In this harassment and discrimination case, the defendant, after serving requests for production on the plaintiff in April 2012, deposed the plaintiff on February 7 of this year, where she testified that she and her counsel possessed several other documents that they did not produce for the defendant.  The defendant filed a motion to compel several types of data including “Facebook and/or other social media data”.  Since the motion to compel, the plaintiff produced the following items:

  • Plaintiff’s day planner;
  • 8-10 pages of documentation concerning “write-ups” and “store visits” from Plaintiff’s employment at the Dollar Tree Store;
  • All saved or exchanged emails between Plaintiff, Trowery and/or any other representatives of Dollar Tree, or involving anything relevant to Plaintiff’s claim in Plaintiff’s possession, including the email containing a draft of Plaintiff’s statement to the EEOC in support of Trowery.

With regard to the request for Facebook data, the plaintiff objected, citing “other court’s holdings that the discovery of Facebook is allowed only where “the defendant makes a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

Judge Haynes noted that while the Sixth Circuit has not yet ruled on the scope of discovery of private Facebook pages, other courts hold that:

“[M]aterial posted on a `private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”

In this case, Judge Haynes ruled that “The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence…Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.”

The defendant also requested reasonable attorneys’ fees incurred in preparing the motion to compel, but Judge Haynes ruled “Given that Plaintiff had justifiable reasons for her discovery objections, the Court concludes that Defendant is not entitled to attorneys’ fees for its motion to compel.”

So, what do you think?  Was the judge correct to deny the Facebook request?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages – eDiscovery Case Law

In Christou v. Beatport, LLC, Civil Action No. 10-cv-02912-RBJ-KMT, (D. Colo. Jan. 23, 2013), Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost.  However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

The defendant had worked for the plaintiff in his Denver nightclubs booking disc jockeys and received both financial and promotional support from the plaintiff in launching an online marketplace (Beatport) for promoting and selling Electronic Dance Music.  Beatport became enormously successful and grew to become the largest online site that caters essentially exclusively to producers and consumers of Electronic Dance Music.  When the plaintiff left the defendant’s employment, he went on to found his own competing nightclub in Denver and the plaintiff claimed that the defendant has been threatening A-List DJ’s that their tracks will not be promoted on Beatport if they perform in the plaintiff’s clubs.

When the case was filed, plaintiffs served a litigation hold letter on the defendants, directing them to preserve several categories of documents, including text messages. However, defendants took no steps to preserve the text messages on the plaintiff’s iPhone, but did not produce any text messages in response to plaintiffs’ first discovery requests served in May 2011. The defendant indicated that he lost his iPhone in August 2011, and with it any text messages saved on it. Plaintiffs contended that this “spoliation” of evidence should be sanctioned by an adverse jury instruction.  The defendants noted that Roulier testified that he did not use text messages to book DJ’s and argued that “it is sheer speculation” that his text messages contained relevant evidence, also noting that they responded fully to the May 2011 discovery, indicating that there was nothing responsive in the text messages.

Noting that the defendant’s testimony that he did not use text messages to book DJ’s was “hardly proof that his text messages did not contain relevant evidence”, Judge Jackson also noted that “although defendants state that defendants ‘found no responsive text messages,’ they do not indicate that defense counsel reviewed Mr. Roulier’s text messages”.

Noting that “Spoliation sanctions are proper when ‘(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.’”, Judge Jackson stated that “Defendants had a duty to preserve Mr. Roulier’s text messages as potential evidence, but they did not do it. Those text messages, few as they might have been, should have been preserved and either provided to the plaintiffs or potentially made the subject of further proceedings before the Court.”

Nonetheless, Judge Jackson found “no basis to assume that the loss of the phone was other than accidental, or that the failure to preserve the text messages was other than negligent” – therefore, the judge found an adverse jury instruction to be “too harsh”.  Instead, Judge Jackson ordered that “plaintiffs will be permitted to introduce evidence at trial…of the litigation hold letter” and defendant’s “failure to preserve Mr. Roulier’s text messages”. The defendants were allowed to “present evidence in explanation, assuming of course that the evidence is otherwise admissible, and argue that no adverse inference should be drawn.”

So, what do you think?  Should the sanction have been harsher?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.